MAHENDRA C. GALA, MUMBAI V. ASST CIT 19(3), MUMBAI

ITA 6590/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2961 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 08-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAURYA PRATAPDR
• Assessee Lawyers: RAJESH SANGHAVI
• Keywords: Reopening of assessment; Reason to believe; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

1 , INCOME TAX APPELLATE TRIBUNAL,MUMBAI- B,BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMB ER & SHAKTIJIT DEY,JUDICIAL MEMBER /.ITA NO.6590/MUM/2013, /ASSESSMENT YEAR-2002-03 MAHENDRA C. GALA R. SANGHVI & CO. CAS , 104 RIZVI CHAMBERS, NO.2 JAIN MANDIR MARG OFF HILL ROAD, BANDRA (W) MUMBAI-400 050. PAN:AABPG 6454 F VS ACIT-19(3) ROOM NO.305, 3RD FLOOR PIRAMAL CHAMBERS MUMBAI-400 012. ( / APPELLANT) ( / RESPONDENT) /ASSESSEE BY :SHRI RAJESH SANGHAVI / REVENUE BY :SHRI MAURYA PRATAP-(DR) DATE OF HEARING : 08 - 10 -2015 / DATE OF PRONOUNCEMENT : 14 -10-2015 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DATED 11.09.2013 OF CIT(A)-18 ,MUMBAI,THE ASSESSEE HAS FILED THE PRESENT APPEAL. ASSESSEE,AN INDIVIDUAL,ENGAGED IN THE BUSINESS OF, MANUFACTURING AND TRADING OF READYMADE GARMENTS AND FABRICS FILED ITS RETURN OF INCOME DEC LARING TOTAL INCOME AT RS.10,18,990/-, ON 26. 10.2002.THE RETURN WAS PROCESSED U/S.143(1) OF THE ACT.THE CASE WAS RE-OPENED U/S. 147 OF THE ACT AND A NOTICE U/S.148 WAS ISSUED ON 27.3.2009.TH E ASSESSMENT U/S. 143(3) R.W.S 147 OF THE ACT WAS COMPLETED ON 31.12.2009 DETERMINING THE INCOME OF THE ASSESSEE AT RS.11.16 LACS. 2. EFFECTIVE GROUND OF APPEAL DEALS WITH THE VALIDITY OF REOPENING OF ASSESSMENT U/S. 147 OF THE ACT AND THE NEXT GROUND DEALS WITH THE MERITS OF TH E CASE.WE WOULD LIKE TO ADJUDICATE THE JURISDICTIONAL ISSUE BEFORE DECIDING GROUND NO.2. THE REASONS RECORDED BY THE AO FOR REOPENING THE AS SESSMENT READ AS UNDER : IN THIS CASE,IT HAS BEEN FOUND THAT ASSESSEE HAD O BTAINED ACCOMMODATION BILLS FROM MANOJ MILLS PROP. RAKESH KUMAR GUPTA OF RS.97,217/- AND FROM S HRI RAM SALES AND SYNTHETICS PROP. HEMA GUPTA OF RS.6,55,098/- (CLOSING BALANCE AS ON 31.3. 2003) FOR WHICH RAKESH GUPTA AND SMT. HEMA GUPTA AGREED .THEY GAVE STATEMENT UNDER OATH D URING SURVEY CONDUCTED ON THEIR PREMISES ON 13.2.2000 AND THEREFORE, ADMITTED THAT THEY WERE IN THE BUSINESS OF PROVIDING ACCOMMODATION BILLS ONLY FOR WHICH THEY CHARGED 1% COMMISSION AND THEY ARE NOT INVOLVED IN ACTUAL TRADING.THESE BILLS ARE GIVEN FOR PURPOSE OF INFLAT ING EXPENSES ONLY AND THUS EVADING TAXES. THE ASSESSEE OBJECTED THE REOPENING OF THE ASSESSME NT.HOWEVER,THE AO COMPLETED THE ASSESSMENT.REFERRING TO THE STATEMENTS RECORDED DUR ING THE SURVEY PROCEEDINGS,CARRIED OUT IN THE CASE OF RAKESH KUMAR GUPTA AND FAMILY MEMBERS,HE MA DE AN ADDITION OF RS.97,217/- TO THE INCOME OF THE ASSESSEE. 2 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM,IT WAS CONTENTED THAT THE AO HAD,IN THE REASON RECORDED,NOT MENTIONED AS TO WHERE OR WHAT SOURCES DID HE GET TH E INFORMATION THAT THE ASSESSEE HAD OBTAINED BOGUS BILLS FROM RAKESH GUPTA/HEMA GUPTA,THAT REASO N WAS MORE OF A SUSPICION STORY RATHER THAN ANY TANGIBLE REASON,THAT THE INFORMATION WAS N OT BASED ON ANY EVIDENCE,THAT THE REASONS DID NOT STATE THAT ANY ALLEGED BILL WAS ISSUED TO THE A SSESSEE,THAT THE AO HAD NOT STATED THAT THE ASSESSEE HAD INFLATED HIS EXPENSES OR HAD EVADED TA X, THAT HE HAD MADE CASUAL OBSERVATIONS BASED ON UNFOUNDED/ UNVERIFIABLE SOURCES.THE ASSESSEE REL IED UPON THE CASES OF KELVINATOR INDIA (228 CTR 488);GERMAN REMEDIES LTD. (287 ITR 494);GKN DRI VESHAFTS (I) LTD. (259 ITR 19). CONSIDERING THE OBJECTIONS RAISED BY THE ASSESSEE,T HE FAA FORWARDED THE SAME TO THE AO FOR VERIFICATION AND REPORT.THE AO,VIDE LETTER DATED 12 .8.2013,SUBMITTED HIS REMAND REPOT WHEREIN HE STATED THAT THE COPY OF THE REASON SUPPLIED TO T HE ASSESSEE WAS UNSIGNED,THAT THE EXTRACT OF THE REASONS RECORDED WAS GIVEN TO THE ASSESSEE,THAT THE SIGNED COPY OF THE REASONS RECORDED WAS BEING SUBMITTED, THAT THE RE-OPENING OF THE ASSESSM ENT WAS DULY APPROVED BY THE ADDL CIT, THAT AS PER THE SATISFACTION RECORDS THE INFORMATION IN POSSESSION AT THE TIME OF REOPENING WAS FOR RS.7.52 LACS (RS.97,217+ RS.6,55,098/-),THAT THE JC IT VIDE HIS LETTER DT.23.12.2009 HELD THAT REOPENING WERE NOT AB INITIO VOID,THAT THE OBJECTIO NS RAISED BEFORE THE AO WERE SUBMITTED BY THE ASSESSEE BEFORE THE JCIT.FINALLY,HE UPHELD THE RE-O PENING. 4. BEFORE US,AUTHORISED REPRESENTATIVE (AR) STATED THA T THE ASSESSEE WAS PROVIDED AN UNSIGNED AND UNDATED REASONS,THAT THE ASSESSEE HAD OBJECTED THE RE-OPENING,THAT THE OBJECTIONS WERE NOT DEALT BY THE AO,THAT FAA HAD NOT CONSIDERED THE FAC TORS RELEVANT FOR DECIDING THE APPEAL.HE REFERRED TO PAGE NO.29 OF THE PAPER BOOK.HE RELIED UPON THE CASES OF GERMAN REMEDIES LTD. (287ITR494),GKN DRIVESHAFT (INDIA) LTD.(259ITR19).D EPARTMENTAL REPRESENTATIVE(DR) SUPPORTED THE ORDER OF THE FAA. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE WOULD LIKE TO DISCUSS SOME OF THE CASES WHEREIN THE ISSUE OF REOP ENING HAS BEEN DEALT WITH.IN THE CASE OF HEMANT TRADERS(375ITR167)THERE WAS AN ALLEGATION TH AT THERE WAS A GROUP OF ASSESSEES ENGAGED IN WHOLE SALE TRADING OF POTATO ON COMMISSION BASIS ,THAT A SURVEY WAS CONDUCTED ON THE BASIS OF THE ALLEGATION THAT THE GROUP OF ASSESSEES WERE RES ORTING TO HOARDING OF POTATOES AND MAKING HUGE PROFITS BY FLUCTUATING THE DAY-TO-DAY PRICE OF POTA TOES IN THE MARKET, THAT NOTICES UNDER SECTION 148 WERE ISSUED TO THE ASSESSEE FOR THE ASSESSMENT YEARS 2009-10 TO 2011-12.THE ASSESSEE FILED A WRIT PETITION CHALLENGING THE ISSUANCE OF NOTICE U/ S.148 OF THE ACT.THE HONBLE COURT DECIDED THE MATTER AS UNDER: THE PRE-CONDITION FOR ISSUING NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961, IS SATISFACTION I N TERMS OF SECTION 147 THAT AN INCOME CHARGEABLE TO T AX HAS ESCAPED ASSESSMENT IN THE RELEVANT AY..THAT NEITHER THE SURVEY REPORT NOR ANY OTHER M ATERIAL INDICATED THAT ANY INCOME CHARGEABLE TO TAX FOR THE RELEVANT ASSESSMENT YEARS HAD ESCAPED A SSESSMENT. THE ASSESSING OFFICER, THEREFORE, HAD NOTHING BEFORE HIM WHICH WOULD ENABLE HIM TO RECORD HIS BELIEF THAT ANY SUCH ESCAPEMENT HAD TAKEN PLACE. IN THE CIRCUMSTANCES, THE REASONS RECORDED A ND WHICH PERTAIN TO ALL THE ASSESSMENT YEARS PRIOR AND SUBSEQUENT TO THE SURVEY COULD NOT SATISFY THE REQUIREMENT IN LAW. THIS WAS NOT HOW THE POWER UNDER SECTION 147 SHOULD BE EXERCISED. IT IS TO BE EXERCISED AND IN EXCEPTIONAL CASES. IT SHOULD NOT B E EXERCISED AS A MANNER OF ROUTINE AND MERELY BECAUSE SOME SURVEY OF THIS NATURE HAD TAKEN PLACE.AT ANY POINT OF TIME AND WHEN THERE WAS SHORTAGE OF PO TATOES IN THE MARKET, THAT SUCH POWERS OF SURVEY WERE INVOKED. IF NOTHING HAD BEEN FOUND THEREIN WHI CH WOULD INDICATE ESCAPEMENT OF INCOME AND CHARGEABLE TO TAX THEN THE BASIS FOR REOPENING OUGH T NOT BE SUCH SURVEY ACTIONS AND THE REPORT. SOMETHING MORE WAS REQUIRED IN LAW FOR THE ASSESSIN G OFFICER TO EXERCISE HIS POWERS. THE ASSESSING 3 OFFICER COULD NOT BE ALLOWED TO CONTINUE THE PROCEE DINGS AND WHICH MAY CAUSE UNDUE HARASSMENT AND EMBARRASSMENT TO THE ASSESSEE. WHEN THERE WAS ABSOL UTELY NO MATERIAL TO INSTITUTE THE PROCEEDINGS OR ISSUE THE NOTICES PROPOSING REASSESSMENT OF INCOME THEN IT IS THE DUTY OF THE COURT TO INTERFERE AND QUASH THE PROCEEDINGS AT THE THRESHOLD. IN THE CASE OF VIDYA SAGAR(305 ITR124),THE HONBLE P & H HIGH COURT HAD HELD THAT THE AO IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME,T HAT ON RECEIPT OF REASONS,THE ASSESSEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE A ND THE AO IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER.SIMILARLY,THE HONBLE CALC UTTA HIGH COURT IN THE CASE OF DEBASHISH MOULIK (370 ITR 660)HAS HELD THAT AT THE TIME OF IS SUANCE OF A NOTICE UNDER SECTION 148 OF THE ACT,THE AO SHOULD HAVE REASON TO BELIEVE THAT ANY I NCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT FOR ANY AY.,THAT THE ASSESSEE IS ENTITLE D TO COUNTER THOSE REASONS BY FILING A REPLY,THAT IT HAS TO BE ADJUDICATED UPON BY THE AO BY A REASON ED ORDER,BEFORE HE PROCEEDS TO MAKE THE ASSESSMENT. IN THE CASE OF MGM EXPORT(323ITR331)THE HONBLE GUJARAT HIGH COURT,FOUND THAT UPON RECEIPT OF THE REASONS RECORDED,THE ASSESSEE P REFERRED OBJECTIONS, BOTH ON JURISDICTION AND ON THE MERITS,THAT THE ASSESSEE PASSED THE ASSESSME NT ORDER WITHOUT DISPOSING THE OBJECTIONS.THE HONBLE COURT HELD THAT THE AO WAS REQUIRED TO DECI DE THE PRELIMINARY OBJECTIONS AND PASS A SPEAKING ORDER DISPOSING OF THE OBJECTIONS RAISED B Y THE PETITIONER,THAT UNTIL SUCH A SPEAKING ORDER IS PASSED,THE AO COULD NOT UNDERTAKE RE-ASSES SMENT.ACCORDINGLY,THE REASSESSMENT ORDER WAS QUASHED AND SET ASIDE WE WOULD ALSO LIKE TO REFER THE CASE OF HARYANA ACR YLIC MANUFACTURING CO.(308ITR38).IN THAT CASE THE HONBLE DELHI HIGH COURT WAS DEALING WITH THE PETITION FILED BY THE ASSESSEECHALLENGING THE RE-OPENING THE ASSESSMENT.DECIDING THE APPEAL T HE COURT HELD AS UNDER: .ON THE FACTS THE REASONS WHICH WERE SUPPLIED TO T HE PETITIONER WERE DIFFERENT FROM THE REASONS PURPORTEDLY RECORDED IN THE FORM ATTACHED TO THE CO UNTER-AFFIDAVIT. THE PETITIONER TOOK THE SPECIFIC P LEA THAT IN THE ABSENCE OF ANY ALLEGATION THAT THE PETI TIONER HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT, THE ASSESS ING OFFICER HAD NO JURISDICTION TO ISSUE THE NOTICE UNDER SECTION 148 AND INITIATE ACTION UNDER SECTION 147 AFTER FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IF THE AUTHORITIES HAD REGARDED TH E REASONS NOTED IN THE SAID FORM TO BE THE ACTUAL REASONS, IT WOULD HAVE BEEN VERY EASY FOR THE ASSES SING OFFICER TO HAVE COUNTERED THIS OBJECTION BY SIMPLY REFERRING TO THE REASONS NOTED IN THE FORM A ND SAYING THAT THE ALLEGATION OF FAILURE TO DISCLOS E WAS VERY MUCH THERE. EVEN ASSUMING THAT THE ACTUAL REASONS WERE THOSE AS NOTED IN THE SAID FORM, IT WAS OBVIOUS THAT THE REASONS WERE NEVER COMMUNICATE D TO THE PETITIONER AND IT WAS ONLY FOR THE FIRST TIME IN THE COURSE OF THE WRIT PETITION THAT THOSE REASONS HAD SURFACED. THEREFORE, THE NOTICE UNDER SECTION 148 AS WELL AS ALL THE PROCEEDINGS SUBSEQUE NT THERETO WERE LIABLE TO BE QUASHED. (EMPHASIS SUPPLIED) . THE HONBLE P & H HIGH COURT IN THE CASE OF VARSHA GOYAL (319ITR92)HAS DEALT WITH THE MATTER WHERE THE ASSESSEE HAD FILED A RETURN OF INC OME WHICH WAS PROCESSED U/S.143(1)(A)OF THE ACT,AFTER SEARCH OPERATIONS WERE CONDUCTED IN THE R ESIDENTIAL PREMISES OF THE ASSESSEE.LATER ON,A NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED FOR RE-ASSESSMENT.THE FAA CONFIRMED THE ORDER FOR REOPENING THE ASSESSMENT,WHEREAS HE TRIBUNAL HE LD THAT THE REOPENING OF ASSESSMENT BY THE AO U/S.147 OF THE ACT WAS UNJUSTIFIED. ON APPEAL,TH E COURT HELD AS FOLLOW: THAT IN SPITE OF THE FACT THAT ALL THE DOCUMENTS AND MATERIAL WERE AVAILABLE WITH THE ASSESSING OFFICER WHEN THE RETURN OF INCOME WAS FILED AND PRO CESSED, NO SPECIFIC ITEMS OF JEWELLERY AND PARTICULARS OF SHARES WHICH IN HIS OPINION HAD ESCA PED ASSESSMENT WERE MENTIONED. MERELY RECORDING THE REASON THAT EXAMINATION OF THE SEIZED RECORDS R EVEALED THAT THE ASSESSEE HAD MADE HUGE INVESTMENTS IN THE PURCHASE OF SHARES AND OTHER MOV ABLE AND IMMOVABLE ASSETS WITHOUT MENTIONING IN HIS NOTE WHAT ITEMS OF JEWELLERY AND WHICH SHARE CE RTIFICATES WERE NOT RECORDED IN THE BOOKS OF ACCOUNT WAS NOT SUFFICIENT FOR REOPENING THE ASSESS MENT. THEREFORE, THE TRIBUNAL WAS RIGHT IN HOLDING 4 THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REO PENING THE ASSESSMENT UNDER SECTION 147 / 148 OF TH E INCOME-TAX ACT, 1961. WE FIND THAT IN THE MATTER OF PARAMJIT KAUR(311 ITR 38),THE ASSESSEE HAD FILED HER ORIGINAL RETURN DECLARING NIL INCOME.THE AO INITIATED REASSESSMENT PROCEEDINGS ON THE BASIS OF INFORMATION RECEIVED FROM THE SURVEY CIRCLE THAT THE SHE HAD GO T PREPARED A DEMAND DRAFT FOR A SUM OF RS.83, 040/-WHICH WAS NOT ACCOUNTED IN THE BOOKS OF ACCOUN T OF THE ASSESSEE.ON APPEAL BY THE ASSESSEE,THE FAA UPHELD THE VALIDITY OF THE NOTICE U/S.148 OF THE ACT,BUT SET ASIDE THE ASSESSMENT ON THE ADDITION MADE BY THE AO AND REMITTED THE MAT TER TO HIM TO FRAME A FRESH ASSESSMENT.ON SECOND APPEAL,THE TRIBUNAL HELD THAT SINCE THE AO F AILED TO INCORPORATE THE MATERIAL AND ITS SATISFACTION FOR REOPENING THE ASSESSMENT,THE SAME WAS INVALID.ON A REFERENCE,THE HONBLE P&H HIGH COURT HELD AS UNDER: . THE ASSESSING OFFICER HAD NOT EXAMINED THE INFO RMATION RECEIVED FROM THE SURVEY CIRCLE BEFORE RECORDING HIS OWN SATISFACTION OF ESCAPED IN COME AND INITIATING REASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER HAD THUS ACTED ONLY ON THE BA SIS OF SUSPICION AND IT COULD NOT BE SAID THAT IT WAS BASED ON BELIEF THAT THE INCOME CHARGEABLE TO T AX HAD ESCAPED INCOME. THE ASSESSING OFFICER HAD TO ACT ON THE BASIS OF REASONS TO BELIEVE AND NOT ON REASONS TO SUSPECT. THE TRIBUNAL RIGHTLY CONCLUDED THAT THE ASSESSING OFFICER HAD FA ILED TO INCORPORATE THE MATERIAL AND HIS SATISFACTION FOR REOPENING THE ASSESSMENT AND THERE FORE THE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT FOR REASSESSMENT PROCEEDINGS WAS NOT VAL ID. WE FIND THAT IN THE REASONS SUPPLIED TO THE ASSESSE E,AT THE TIME OF ISSUING UNSIGNED REASONS THE AO HAD NOT MENTIONED ANYTHING AS WHAT WAS THE BASIS OF ARRIVING AT THE CONCLUSION OF ESCAPEMENT OF INCOME,THAT ALSO IN THE REASONS RECOR DED HE HAD NOT MENTIONED THAT THE ESCAPEMENT OF INCOME WAS DUE TO FAILURE OF THE ASSE SSEE TO DISCLOSE TRULY AND FULLY THE MATERIAL FACTS,THAT THE ASSESSEE HAD RAISED OBJECTION TO RE- OPEN THE MATTER,THAT THE AO DID NOT DEAL WITH THE OBJECTIONS AND PASSED THE ORDER,THAT THE FAA CALLED FOR REPORT FROM THE AO,THAT THE REASONS MENTIONED IN THE REPORT AND SUBMITTED TO THE FAA WE RE DIFFERENT FROM THE REASONS SUPPLIED TO THE ASSESSEE,THAT THE AO HIMSELF ADMITTED THAT THE ASSE SSEE WAS SUPPLIED ONLY GIST AND SAME WAS UNSIGNED,THAT THE AO HAD NOT ANNEXED THE STATEMENTS OF GUPTAS WHILE SUBMITTING THE REPORT TO THE FAA-THOUGH HE HAD MENTIONED THAT SAME ARE ANNEX ED,THAT THE FAA IGNORED THE BASIC ISSUE RAISED BY THE ASSESSEE WITH REGARD TO THE JURISDICT ION.CONSIDERING THE VARIOUS FACTORS-LIKE SUPPLYING UNSIGNED REASONS,EXISTENCE OF TWO DIFFER ENT SETS OF REASONS FOR ISSUING 148 NOTICE,NOT ADJUDICATING OBJECTIONS RAISED BY THE ASSESSEE,REOP ENING OF ASSESSMENT AFTER A VERY LONG PERIOD, RELYING ON THE STATEMENTS OF THIRD PARTY THAT WERE NOT CONFRONTED TO THE ASSESSEE ETC.-WE ARE OF THE OPINION,THAT THE NOTICE U/S.148 HAD BEEN ISSUED WIT HOUT THE JURISDICTIONAL FOUNDATION U/S.147 BEING AVAILABLE TO THE AO AND THAT THE NOTICE AND T HE SUBSEQUENT PROCEEDINGS WERE WITHOUT JURISDICTION.HOLDING THE ASSESSMENT INVALID,WE REVE RSE THE ORDER OF THE FAA. EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS AL LOWED. . ORDER PRONOUNCED IN T HE OPEN COURT ON 14 TH OCTOBER,2015. 14 ,2015 SD/- SD/- ( / SHAKTIJIT DEY) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI, /DATE: 14.10.2015 . . . JV.SR.PS.